Prolonged incarceration cannot override Section 43-D(5) UAPA bar where accusations remain prima facie true.

The appellant was arrested on July 26, 2020, in connection with FIR No. 42/2020 for offences under Sections 17, 18, 20, 21, 38, and 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The prosecution alleges that the appellant was a member of a Lashkar-e-Taiba (LeT) module involved in receiving and distributing terror funds on the directions of Pakistan-based handlers.

Specifically, bank records showed a transfer of ₹83,847.58 to the appellant’s account from a handler named Haroon @ Khubaib.

It is further alleged the appellant used these funds to pay for arms deliveries and procured SIM cards and grenades for the terror outfit.

The trial court framed formal charges on October 29, 2022.

The appellant challenged the trial court’s order dated January 4, 2025, which denied him bail on the grounds that a prima facie case existed and the bar under Section 43-D(5) of the UAPA applied.

As of the date of the appeal, the appellant had been in custody for over five years, with 28 out of 107 witnesses examined.

1. Whether the material on record establishes that the accusations against the appellant are prima facie true, thereby attracting the statutory bar to bail under Section 43-D(5) of the UAPA.

2. Whether prolonged incarceration of more than five years entitles the appellant to bail notwithstanding the rigours of Section 43-D(5).

The Court applied Section 43-D(5) of the UAPA, which prohibits the grant of bail if the court, on a perusal of the case diary or the report under Section 173 CrPC, is of the opinion that there are reasonable grounds for believing the accusation is prima facie true.

The Court relied on NIA v. Zahoor Ahmad Shah Watali, which mandates a prima facie assessment rather than a mini-trial at the bail stage.

It also considered Union of India v. K.A. Najeeb, which held that constitutional courts can grant bail despite statutory bars if the right to a speedy trial under Article 21 is violated.

Finally, it referenced Gurwinder Singh v. State of Punjab, asserting that the gravity of the offence and credible involvement must be weighed against the duration of custody.

The Court observed that the appellant’s involvement was not "peripheral" but direct, based on documented financial transactions from a known LeT handler into his personal bank account, which the appellant failed to explain.

The Court noted that unlike the precedents cited by the appellant (e.g., Vernon or Jalal-ud-din), where the roles were either ideological or accidental, the current allegations involved the active procurement of grenades and SIM cards and the distribution of terror funds for arms.

Regarding the five-year incarceration, the Court reasoned that mere delay does not automatically override the statutory bar when the offence is grave and the trial is actively progressing (28 witnesses examined).

The Court held that the framing of charges by the trial court reinforced the prima facie truth of the allegations.

Consequently, it found that the requirements of Section 43-D(5) were not satisfied by the appellant to warrant the lifting of the bail bar.

The Court concluded that the nature and seriousness of the crime outweighed the period of custody at this stage.

However, the Court granted the appellant liberty to apply for bail afresh after the remaining material witnesses are examined. The trial court was directed to expedite the trial.